Great Western Administrators Iron Worker FCE

LMMS, LLC

Kinematic Specialists

Dr. Allen S. Miller

411 E. Huntington Dr. 107-285

Arcadia CA 91006

(626) 399-6834

E-Mail Drasmiller@Earthlink.net ·

August 15, 2008

Jennifer Stafella

Claims Manager,

S & C Claims

3380 West Sahara Ave. #100

Las Vegas, NV 89102

RE:

Patient Name:    Daniel Smith

DOB                  03/22/1981

Claim#:

Employer:           Bob’s Construction

Job Description: Steel Worker

DOI:                   05/23/2007

DOE:                  08/14/2008

PHYSICAL EVALUATION

 

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Daniel Smith presents today upon referral by his Claim Examiner for an examination to reassess further treatment and/or diagnostic testing. He is a 27-year-old, well developed 6’, 224 pound male previously employed in construction. He presents with a history of an occupational injury occurring on May 23, 2007, while working in Las Vegas. At that time, while standing on a ladder perched on a scaffold, platform, he states the scaffolds collapsed causing him to fall approximately 20 feet, landing onto a hard surface. He has no recollection of the events and is not certain how he landed or whether he had  loss of consciousness; however, it was a closed injury. Mr. Smith states that he originally refused to be transported to the hospital by ambulance, but later agreed to have his supervisor transport him to the emergency room at St. Vincent’s Hospital in Henderson, Nevada. Radiographs were obtained at that time and he was admitted to the hospital. He was diagnosed as having thoracic and lumbar compression fractures.HISTORY OF INJURY:

He was neurologically intact at that time, and was braced/casted for four to five months by Dr. Siegler. Mr. Smith states that he relocated to San Diego California and began physical therapy there with Dan Gross, PT.

The patient complains of intermittent dull pain throughout his mid to low back region, which is occasionally sharp and severe. The quality of pain is aching. Mr. Smith states that he has pain most of the time. The pain is not radiating. His symptoms are worse with prolonged bending or stooping and standing, however, sitting does not bother him. He has not worked since his date of injury. He regularly uses Lidoderm patches and takes Percocet and Ibuprophen for pain.

Mr. Smith was a very polite and cooperative subject; he states that he had his girlfriend drive him which consisted of 90+ minutes of sitting. He was able to walk to the office from the car unattended and without antalgia. He was able to negotiate the office, speak clearly and concisely with the office staff and sit in the waiting room without hindrance.

When asked what activities Mr. Smith participates in all day, he replied he takes “walks up and down the block a couple of times a day”.  He states that he “washes the dishes, which is time consuming and intense” and plays the guitar until his girlfriend comes home. He then helps prepare dinner and watches TV.  He states that his girlfriend is a massage therapist, however, does not give him any massages.

The results of this evaluation are discussed below.

PAST MEDICAL AND FAMILY HISTORY:

Mr. Smith states he fell and fractured his right patella. He states he has no prior industrial, family, or other injuries that are contributory to this case.

EXAMINATION FINDINGS:

This is a well developed 27 year-old Caucasian male complaining of focused pain at the lower thoracic and upper lumbar region. There are +2 muscle spasms of the thoracic and lumbar para-spinal musculature and point tenderness at T8 & L1. The patient states that he has no other symptoms, Radicular pain, numbness and tingling in any of the extremities.

Mr. Smith was asked to describe and number his overall pain on a scale of 1-5, 5 being described to him as the worst pain ever and I would need to take him to the hospital. He stated his pain was a 2 ½ and stated it “is that way all the time”.

He appears his stated age and is in good physical condition. Muscle testing revealed +5 muscle strength in the upper and lower extremities bilaterally.

ORTHOPEDIC SIGNS AND TESTS

Provocative Test	Result	Comment
Patellar Reflex	Positive Bilaterally	1+
Achilles Reflex	Positive Bilaterally	1+
L4 Dermatome Sensation	Normal
L5 Dermatome Sensation	Normal
S1 Dermatome Sensation	Normal
Straight Leg Raise (Right)	60 degrees	Negative-Pulling pain in the low back
Straight Leg Raise (Left)	75 degrees	Negative-Pulling pain in the low back
Sitting Straight Leg Raise (Right)	90 degrees	Negative-Pulling pain in the low back
Sitting Straight Leg Raise (Right)	90 degrees	Negative-Pulling pain in the low back
Double Leg Raise	Negative	Negative
Kemps	Positive Bilaterally	Sharp pain in the low back
Patrick Fabre	Negative Bilaterally
Heel to Heel	Negative
Toe Walk	Negative
Finger to Nose	Negative

The following tests were performed to determine the subject’s ability to perform the specific job functions safely without causing themselves harm or harm to others.

CARDIOVASCULAR FITNESS TESTING

Depending upon the identified goals for the evaluation, cardiac testing is necessary for specific concerns regarding individuals with specific cardiac disease, and job positions that require significant walking, stepping, or constant upper extremity demands. The subject’s pre-test heart rate was 79 BPM and blood pressure 132/74. The heart rate during testing elevated to 170/99 with a heart rate of Post-test heart rate was 99 BPM. Mr. Smith’s blood pressure and heart rate returned to normal within approximate 2 minutes.

Test	MET Level	Ability
Step Test	3.5	Medium

Mr. Smith had a 45-minute warm-up performing range of motion testing, and isometric testing, before the step test began.  Mr. Smith states that he was out of breath, but had no increase in pain or discomfort.

COMPUTERIZED RANGE OF MOTION

The patient was tested today using the JTECH Tracker ROM – a computerized range of motion measurement system utilizing dual inclinometers. ROM tests were performed in accordance with the protocols published by the American Medical Association.

Thoracic ROM Exam
Test Name
Norm	Max	Deviation
Minimum Kyphosis	20°	60°	40°
Flexion	60°	15°	-45°
Left Lateral	10°	23°	13°
Right Lateral	10°	35°	25°
Left Rotation	30°	13°	-17°
Right Rotation	30°	24°	-6°

Lumbar ROM Exam
Test Name
Norm	Max	Deviation
Left Lateral	25°	29°	4°
Right Lateral	25°	29°	4°
Left Rotation	0°	8°	8°
Right Rotation	0°	5°	5°
Minimum Lordosis	15°	40°	25°
Flexion	60°	51°	-9°
Extension	25°	19°	-6°
Sacral Hip Flexion	45°	94°	49°
Sacral Hip Extension	5°	23°	18°

Validity ROM Exam
Test Name
Norm	Max	Deviation
Left Straight Leg Raise	65°	71°	6°
Right Straight Leg Raise	65°	72°	7°

The patient was tested today using the JTECH RangeTrack – a computerized goniometer for measuring joint range of motion. ROM tests were performed in accordance with the protocols published by the American Medical Association.

COMPUTERIZED ISOMETRIC LIFT STRENGTH

The patient was tested using the JTECH computerized static lift strength evaluation system.

A Coefficient of Variation (CV) and/or difference between successive reps of 14% or less indicates validity, reproducibility, and consistency of effort (Chaffin, 1976). 6 of 6 tests performed met the validity criteria.

COMPUTERIZED ISOMETRIC LIFT STRENGTH

The patient was tested using the JTECH computerized static lift strength evaluation system.

A Coefficient of Variation (CV) and/or difference between successive reps of 14% or less indicates validity, reproducibility, and consistency of effort (Chaffin, 1976). 5 of 6 tests performed met the validity criteria.

The data is used to compare a patient’s lift strength to published norms. The 50th percentile indicates the average for the patient’s gender. NIOSH has determined a minimum of the 25th percentile should be demonstrated for the worker to safely perform the lift on the job (Work Practices Guide for Manual Lifting, 1981).

NIOSH Lift Test	Max of Avg.	Pop. %Tile
Arm	14 lb	< 10%
Torso	34 lb	< 10%
Leg	35 lb	< 10%
High far	8 lb	< 10%
Floor	45 lb	< 10%
High near	27 lb	< 10%

DYNAMIC LIFT TESTING

Dynamic task lifting is used to determine a worker’s ability to negotiate weighted objects.  Lifting is performed to either a specific standard detailed by a job description or to the traditional work heights associated with the Dictionary of Occupational Titles (DOT).

WORK ACTIVITIES

Work Activity Testing is used to determine a subject’s ability to perform dynamic non-material handling activities. Activities are assessed either to the DOT standards or to work task specific movement patterns. Tool use or the ability to involve or negotiate the environment is also typically evaluated when specific activities are assessed.

Activity	Ability
Squat	Frequent
Reach-up	Frequent
Reach-out	Frequent
Bend	Frequent

WORK POSTURES

Work posture testing is used to determine a worker’s tolerance for maintaining specific postures and is evaluated to determine their ability to perform the given posture to either the DOT standards (Occasional, Frequent or Constant) or to a specified standard or time requirement. Testing is performed either formally or informally depending on the significance of the posture relative to the overall required work demands.

Activity	Ability
Standing	Frequent
Sitting	Constant
Walking	Frequent
Climb	Frequent

REVIEW OF RECORDS:

1. Exam Date: 5/2312007 Physician: Lasry, Jason

Procedure: XR Thoracic Spine + Swim View Accession Number:

FINDINGS: There appears to be an acute compression deformity at the TB level. The Paraspinous soft tissues appear displaced. This is compressed approximately 30%. TB level appears slightly compressed as well but this may be an old finding. The lower thoracic spine fractures are again noted at approximately the T11, T12 and L1 levels.

IMPRESSION: 1. There appear to be acute compression fractures of the thoracolumbar spine. A T6 compression fracture of approximately 30%. The T11, T12, and L1 levels appear compressed as well and are dictated on previous lumbar spine examination.

1. Exam Date:5/23/2007 Physician: Lasry, Jason

Procedure: CT T-Spine wo Contrast

IMPRESSION:     1. Findings consistent with an acute compression fracture at the T8 vertebral body of 40% Pedicles appear intact, but there is a bilateral laminar fracture.

2. There may be a tiny epidural hematoma at the T5 level, but is not causing any central canal narrowing.

3. Compression deformities at the TI I and 112 levels, as described. See lumbar spine CT scan.

1. Exam Date: 5/23/2007 Lasry, Jason

Procedure: XR Lumbar Spine Series, Five Views 5/23/07

FINDINGS: There are several compression deformities of the lumbar spine. The T11 vertebral body compresses approximately 20%. The T12 vertebral body compresses approximately 30%. L1 vertebral body compresses approximately 25%. This is probably acute as the bones appear somewhat irregular. Bony alignment is still within normal limits, it

may be further evaluated with MRI scan. SI joints appear within normal limits. Paraspinous soft tissues appear within normal limits.

IMPRESSION: 1. There appear to be several compression deformities of the thoracolumbar spine with compression deformities at the T11 level of approximately 20%, T12 level approximately 30% and L1 level approximately 25%.

1. Exam Dale:5/29/200 Ordering Physician Martinez, Roger

Procedure: MRI of the Thoracic Spine 05/29/07

FINDINGS: A 40% anterior wedge compression fracture of the T8 vertebral body is noted that appears relatively recent with edema and some slight enhancement due to trauma. Some minimal anterior wedging of the TI1, T12, and LI vertebral bodies are also seen that appear relatively recent. A minimal anterior wedging of the T6 vertebral body is also seen that appears old.

At all levels of the spinal canal, however, the spinal canal is generous in size, as are the neural foramen bilaterally. No definite epidural or other abnormalities is seen in the spinal canal in the thoracic spine is seen.

IMPRESSION I – Multiple anterior wedge compression fractures, most new but some old, as described above. No epidural hematoma seen. Spinal canal generous in size at all levels of the thoracic spine, as well as the neural foramen bilaterally.

1. Exam Date: 5/29/2007 Physician: Martinez, Roger

Procedure: MR T~Spine wo Contrast

FINDINGS: A 40% anterior wedge compression fracture of the T8 vertebral body is noted that appears relatively recent with edema and some slight enhancement due to trauma. Some minimal anterior wedging of the T11, T12, and LI vertebral bodies are also seen that appear relatively recent. A minimal anterior wedging of the TB vertebral body is also seen that appears old.

At all levels of the spinal canal, however, the spinal canal is generous in size, as are the neural foramen bilaterally. No definite epidural or a process is seen in the spinal canal in the thoracic spine is seen.

IMPRESSION: 1. Multiple anterior wedge compression fractures, most new but some old, as described above. No epidural hematoma seen. Spinal canal generous in size at all levels of the thoracic spine, as well as the neural foramen bilaterally.

1. Exam Date: 7/5/2007 Physician: Peoples, Randal R

Procedure: Four Views Lumbosacral Spine 07/05/07 1217 Hours

FINDINGS: AP, lateral, flexion, and extension views of the lumbosacral spine were submitted for review. The lumbosacral spine is well aligned without evidence of subluxation despite the flexion and extension maneuvers. However, there is a mild wedge deformity noted of the T11, T12, and L1 vertebral bodies. These compression fractures were noted on a previous examination dated 05/23/07.

IMPRESSION: 1. With flexion and extension maneuvers, there was no subluxation noted of the lumbar spine.

2. Old mild anterior compression fractures noted of the T1l, T12 and LI vertebral bodies.

1. 12/28/07 Orthopedic Consultation Kevin M. Deitel, MD.
   1. Findings: Thoracic and Lumbar Compression fractures AOE 05/23/07. The patient is to be returned to work, light duty, restricted to no prolonged standing, walking, bending, stooping, climbing, lifting or carrying over 10 lbs.

DIAGNOSIS:

1. 1. Thoracic and Lumbar Compression Fractures

RELIABILITY OF EFFORT:

Subjective determination of effort is based on clinical opinion of how a worker participated in the FCE process.  Eight questions are used to formalize the evaluator’s opinion as to whether the workers performance was consistent clinically.

Objective tests that are not directly biased by direct interaction between the evaluator and the worker are tallied to assess the worker’s participation level and effort consistency.  This is used as a checks and balance system to support and substantiate the evaluator’s clinical opinion. Objective tests are tallied by the software and are not directly biased by the evaluator. Additionally, objective tests can be imported from devices other than Tracker.

DISCUSSION:

Mr. Smith presents today for an examination to reassess his current treatment, need for further treatment, and for diagnostic testing to assist him in returning to gainful employment. Mr. Smith states that he takes four Percocet pills and 1 Lidoderm patch a day. During the examination process, Mr. Smith was able to sit, walk, and stand without complaint.  He was also able to be seated and lie down on the examination table (height 36 inches) without discomfort or assistance to stand from a prone position.  While in the office, Mr. Smith was seated for approximately 30 minutes while completing the initial paperwork in addition to the 1 1/2+ hours of travel time; he then walked with normal gait to the examination room.  He had forgotten some paperwork and walked back out to his vehicle and back to the examination room, which involved opening the front glass door that takes considerable effort to open. Once he was finished with the examination, he walked out to the vehicle, opened the door, climbed in and sat in the vehicle without effort or discomfort.

He was then escorted back to the examination room and his blood pressure was taken.  He was seated for approximately 2 minutes and his resting heart rate was noted³.  During the warm-up and step test, Mr. Smith stated, with movement his complaints subsided.  The step test was completed without incident. Mr. Smith’s blood pressure rose and fell consistent with the work load, what you would expect of a 27 year-old male. Mr. Smith was cooperative during all portions of the examination. Mr. Smith did state that his pain level slightly increased during the isometric testing to a 3 out of 1-5 scale.

During the rest of the testing Mr. Smith was asked to sit, stand, walk, lift, and carry in all NIOSH lifting positions. He was tested with blood pressure and heart rate monitor at every step of the examination.  Mr. Smith had no obvious physiological reactions i.e. severely elevated Heart Rate, myospasm or failure to complete the exam. We had to repeat many portions of the examination, as Mr. Smith would not provide full effort on a continuous basis.  His gait did not change, his biomechanics changed only slightly during the isometric testing and it is noted that his palpable muscle spasms increased from +2 to +3 which would be expected considering the amount of force that the patient exhibited.

As discussed, we were able to evaluate Mr. Smith over a significant amount of time. This testing is quite strenuous, and designed to reveal the true condition of the subject’s injuries. In Mr. Smith’s case, there was slight palpable muscle spasms in the Thoracic-Lumbar junction area of the spine, and restriction of lumbar extension.

There was no significant guarding, antalgia or abnormal posture associated with his movements over the extensive period of time he was evaluated. This lack of significant muscle spasm or guarding indicates that there is no biomechanical instability and thus no active injury as substantiated by the 7/5/2007 flexion/extension studies. It was noted that Mr. Smith has been, in his words, sedentary since the time of the accident only walking up and down the block and vacuuming as well as other household activities during the day. We would expect significant de-conditioning associated with the lack of activities that he is participates in all day as they are extremely sedentary. Mr. Smith to the contrary, is well fit, his blood pressure and heart rate lowered following exertion consistent with a subject of physical capacity and not one of a de-conditioned man that has not worked since the time of the accident².  Additionally, his heart rate did not stay elevated as one would expect of a man in extreme pain as he describes².

As referenced in the literature, a person that has essentially been inactive for over a year, one of which that wore a body brace for 5 months, would have degraded in his physical ability to perform work. Mr. Smith was injured on 05/23/2007, his only stated activities are walking up and down the block a couple of times a day, vacuuming, washing dishes and playing guitar calculating to the DOT Guidelines as sedentary work¹ . Also, an individual in extreme pain, as described by Mr. Smith would have had, decreased muscle tone, decreased cardiac MET Level, an elevated heart rate and blood pressure that does not reduce over time and would increase substantially with “work”³.

Objective computer testing, cardiac step testing, as well as the extensive physical examination reveled Mr. Smith, was able to  lift, twist, turn stoop and perform activities consistent light-medium work in all positions ¹ full time, indicating activities well above a sedentary lifestyle as described by the patient. These factors indicate that Mr. Smith was performing physically more strenuous activities than he states he was performing while TTD. Human beings accommodate physically to the work they perform⁴. Additionally, Mr. Smith denied any previous injuries except a “fall” that resulted in a patellar fracture. It was noted by 5/29/2007MRI by Roger Martinez, MD, noted that “there was a minimal anterior wedging of the T6 vertebral body seen that appears old”, indicating an old thoracic compression fracture. This information calls into question the severity of the fall or prior injuries Mr. Smith has experienced that were not expressed during the interview. Mr. Smith was disingenuous in his statements concerning his previous injures, which of course calls into question his credibility in regards to this examination. Statements made by Mr. Smith indicate that he has had numerous jobs and this job was obtained by “meeting a guy in a bar”. He moved to Las Vegas to “get a job” as he was out of work in his home town in Massachusetts. Mr. Smith worked in the steel industry while in California, and due to some conflict issues with his supervisor left that place of employment.

Mr. Smith is very apprehensive about moving, twisting, turning or lifting due to his injury, however was able to these activities well without repercussions.  He indicated that his life is one of moving from place to place and job to job as he desired. He stated he is quite happy in his current relationship and his duties as a home maker and that he is apprehensive about returning to the job market. Mr. Smith states that his current physician stated that he would never return to construction. I respectfully disagree with this idea, as these fractures are well healed, the subject has minimal movement restrictions consistent with this injury and his strength level will increase once he becomes more active.

With these corollaries in mind I can state with medical probability the following conclusions and recommendations.

CONCLUSION

With the information derived from the physical examination, cardiac step test, computerized range of motion, isometric strength testing, related documentation, I can make the following conclusions:

Mr. Smith’s complaints of pain have been unchanged since his 12/28/07 examination with Kevin Deitel, MD.  Mr. Smith has reached a Permanent Stationary Status, Maximum Medical Improvement, and can return to work full time, with the current permanent restrictions of  Light-Medium work (35lbs Occasionally, 18 lbs Frequently, 7 lbs Constantly)¹ in all positions is consistentwith NIOSH Guidelines².

The physical examination, MRI, CAT scan as well as x-rays indicate that Mr. Smith does have moderate thoracic and lumbar compression fractures. Mr. Smith will continue to have some dull pain and slight restriction consistent with these healed fractures; additionally I can state with some medical probability that his current pain, is significantly less than the patient articulates and does not require the amount and type of medications he is receiving at this time.

Mr. Smith has reached a permanent and stationary status as well as maximum medical improvement and is in not in need of further treatment. According to the Dictionary of Occupational Titles¹, Mr. Smith can return to work full time, and can perform job tasks consistent with light-medium duty work¹.

FUTURE TREATMENT RECOMMENDATIONS

The patient has reached maximum medical improvement and is not in need of future treatment in regards to the 05/23/2007 work related accident. Physical Rehabilitation would be a valid treatment method to bring this patient back to his pre-injury strength. This type of treatment is quite valid and successful when a patient is motivated. However, I can state with some medical probability that Mr. Smith has very little desire to exert the energy required to participate in a physical rehabilitation program.

PHYSICAL DEMAND LEVEL

Mr. Smith is capable of performing permanent restricted full time duty of light-medium work in all positions (35lbs Occasionally, 18 lbs Frequently, 7 lbs Constantly) ¹.

COMPLIANCE STATEMENT:

“I personally evaluated this patient and prepared this report.  If others have performed any services in connection to this report, outside of clerical preparation, their name and qualifications are noted herein.  The time spent was in accordance with Industrial Medical Council (IMC) guidelines.  I declare under penalty of perjury that the information contained in this report and its attachments, if any, is true and correct to the best of my knowledge and belief, except as to information that I have indicated I received from others.   As to that information, I declare under penalty of perjury that the information accurately describes the information provided to me and, except as noted herein, that I believe it to be true.  I have not violated Labor Code Section 139.3 and the contents of the report and bill are true and correct to the best of my knowledge.  This statement is made under penalty of perjury.”

All available data supports the conclusions reached in this report.  Thank you very much for considering this organization for your referral.  If there are any questions concerning this matter, please feel free to contact me.

Sincerely,

________________________________08/15/2008

Allen S. Miller, DC, DACBSP                       Date:

(This signature will act as an original for the purposes of this document).

cc:        Lisa Anderson Esq., 601 South Ninth Street, Las Vegas, NV

REFERENCES:

1. Dictionary of Occupational Titles, U.S. Department of Labor Employment and Training Administration 1991. Volume II Fourth Edition, Revised 1991.
2. Nursing Diagnosis: Application to Clinical Practice by Lynda Juall Carpenito-Mojet
3. Foreman & Croft 1997. Radoff et all 1993.

2.       United States National Institute for Occupational Safety and Health (NIOSH)

3.       Health Psychology, By Michael Feuerstein, Elise E. Labbé, Andrzej R. Kuczmierczyk

4.       Cardiovascular/Pulmonary Essentials, By Marilyn Moffat, Donna Frownfelter

7.       The Forensic Documentation Sourcebook: The Complete Paperwork Resource for …

by Theodore H. Blau, Fred L. Alberts, Jr., Fred L. Alberts.

New Penn Employee FCE

This is the report of the New Penn employee that was injured lifting 100 lb bags of coffee. This report led to his conviction and later incarceration for workers compensation fraud.

Mr. Andrew Kerlik
VP Risk Management Human Resources
New Penn Motor Express Inc.
P.O. Box 630
Lebanon, PA 17042-0630

Re: Timothy Sham
SS#: 000-00-0000
DOB: 1/2/63
Claim #: 97007976
Employer: New Penn Motor Express Inc.
Job Description: Truck Driver
Date of Injury: 10/21/1997

Peer Review Record Review and Report

Dear Mr. Kerlik,

We were contacted to perform a peer review of medical records and all other pertinent information and compare those findings to the demands of the job task to determine:

1. Ability to perform job task.
2. Estimate a date of return to job task.
3. Functional capabilities of the above named individual.

The results of this review are discussed below.

HISTORY:

Mr. Sham is a 37-year-old male who stated, on 10/21/97, that he injured his low back in the course of his occupation as a truck driver, including lifting and moving heavy objects. He also states that he had an onset of sudden pain in the right buttock, radiating to the posterior heal. He states that he received an evaluation and eventual treatment at Exeter Hospital Emergency Room. Mr. Sham reported to Dr. Hepner that he returned to work wearing a lumbar support, and

PAST MEDICAL/SURGICAL HISTORY:

1. A/C Separation age 17 1.
2. Rt. Clavicle Fracture Age 17 1
3. Mr. Sham denies any contributory or past pertinent medical history 1.

PERSONAL ACTIVITES, HOBBIES:

1. Mr. Sham states that he is unmarried and residing with his girlfriend and two minor children.
2. The representative for Mr. Sham, Billy Carnes, states that he is a professional skydiver 2.
3. Mr. Sham stated in his deposition that, when he skydives, he exits the plane at a height upwards of 13,500 feet, and accelerates to speeds in excess of 150 mph .
4. Mr. Sham stated that he is training for the ESPN Extreme Games as a “sky surfer “3.

EXAMINATION FINDINGS:

Negative orthopedic and neurological findings to support a recent lumbar disc protrusion, or prolapse 1. Trunk flexion to reach within five inches of the floor with dimished extension. There is mild tenderness across the lumber spine. The subject displayed no atrophy or loss of reflexes 1.

RADIOLOGICAL FINDINGS:

1. Herniated disc at L5 of the protrusion type, with disc material protruding through the annulus extending to the right and lateral towards the neural foramen, touching the L5 nerve root 4.
2. There is a bulging at the L4disc 4.

REVIEW OF APPLICABLE DATA:

On 3/30/98, Mr. Sham participated in rehabilitation exercises, including seated rowing 4 sets of 50 lbs from 10-15 repetitions. He was also able to perform lat pull downs of 4 sets of 62 pounds for 10-12 repetitions; leg curls of 4 sets of 50 lbs for 10-12 repetitions 5. These exercises continued through 6/26/98 with the weight utilized escalating to 75 lbs for rowing, 62 lbs for lat pull downs, and 100 lbs for leg curls, respectively 6.

On, 8/05/98 3, a private investigator observed Mr. Sham working on an addition to a building at his skydiving “drop zone,” New England Adventures. These activities required repeated bending, stooping, squatting, reaching, walking, crawling, standing, sitting, fine hand motor control and lifting. These activities are consistent with his job task as a truck driver 7.

Upon evaluation of videotape and testimony, Mr. Sham, along with his representative Billy Carnes, admitted he participated in repeated freestyle skydiving activities from April 1998 through August 5, 1998 3. Additionally, it is depicted in the August 5, 1998 videotape and by statements made by Mr. Sham that he is a “professional skydiver” 2. These activities require repeated bending, stooping, squatting, reaching, walking, crawling, standing, sitting and fine hand motor control. These activities are more strenuous if the diver is “packing” his own chute. Mr. Sham also states that he exits the plane at speeds of 120 mph. He also states that when the canopy opens, he “goes from 150 mph to 0 mph in one second” 2.

Mr. Sham was able to perform these activities voluntarily without apparent restriction while carrying a 30-35 lb. parachute pack. Mr. Sham performs these activities in preparation for and following a jump. The intervals for which this activity is performed, by admission of Mr. Sham, is between 8-10 times during an outing 2for a total of 8 hours. Once prepared, Mr. Sham puts the pack on his back and voluntarily boards a plane on which he sits until the plane reaches an altitude of 13,500 feet. As the divers ascend to the agreed-upon altitude, the ambient temperature decreases, to an average of 25 degrees Farenheight (depending on region and meteorological factors). When he exits the aircraft, he is moving horizontally at the same speed as the aircraft, typically 90-110 mph. During the first 10 seconds, a skydiver accelerates up to about 115-130 mph straight down. In a standard face-to-earth position, the diver can change his fall rate up or down a few (i.e., 10-20) miles per hour 8. However, by diving or “standing up” in freefall, any experienced skydiver can learn to reach speeds of over 160-180 mph. Speeds of over 200 mph require significant practice to achieve 8. By admission, Mr. Sham states that he reaches speeds in excess of 200 mph. The actual freestyle flying lasts approximately 2-3 minutes. Upon deployment of the chute, 2-3 G-forces are enacted on the body of the diver. These forces can be so severe in some cases as to cause unconsciousness 9. Once under parachute, descent rates of 1000 ft/min are typical, and a heavier person may have a somewhat faster descent than a lighter person. Mr. Sham is 6’0”, 185 lbs. Experienced jumpers can descend (in normal glide) at up to 1500 ft/min. During radical turns, the descent rate can go well over 2000 ft/min.10 The diver continues to decelerate and hit the ground, if all is controlled, at an average speed of 20 mph, causing significant compression forces on the lower extremities and spine. By admission, Mr. Sham repeated this activity 8-10 times during an outing 2.

On 8/11/1998, Mr. Sham submitted to a Physical Capacity Evaluation, that utilized isometric strength-testing that is compared to the National Institute of Occupational Safety & Health Standards (NIOSH).10 This testing was utilized to determine Mr. Sham’s physical demand level and ability to return to work in his previous job task. This testing consisted of computerized range of motion, computerized isometric lift tasks, along with a routine physical exam. The protocol consisted of lifting isometrically within the NIOSH 6-position protocol. The protocol is to instruct the subject to lift normally and in any way he felt best, and to stop if his comfort level changed. The objective of this testing was to determine the participant’s Physical Demand Level (PDL) for return into a suitable job task.

During testing, Mr. Sham was required to bend, squat, reach, walk, stand and sit for varying intervals of time, which are activities that coincide with his duties as a truck driver. These activities also involved pushing, pulling, lifting and straining against a non-moveable object to measure strength. This testing is quite rigorous and physically demanding. One of the most important aspects of this testing is that, if there is disability, impairment or injury, this testing would aggravate it immediately along with the accompanying symptoms. However, in this case, I cannot find evidence of Mr. Sham’s inability to perform or complete the testing, or any increase in objective medical signs/symptoms. This type of testing involves very objective protocols and anonymous tests; know as “distraction testing”. Specifically, there is no feedback from the equipment to tell the subject how he is performing. The built-in coefficient of variance ensures both subject and evaluator accuracy along with consistency. In Mr. Sham’s case, he was able to produce strength consistent with the Dictionary of Titles (DOT), Very Heavy Lifting,10 which is consistent with his described job task as a truck driver 5.

CONCLUSIONS AND RECOMMENDATIONS:

With the information derived from documentation pertaining to the computerized testing, physical examination, rehabilitation reports, videotapes and statements made by Mr. Sham, we can make the following conclusions.

In March of 1998, Mr. Sham participated in rehabilitation exercises, consisting of seated rows, squats, lat pull downs and leg curls. He utilized weights in excess of 50 lbs increasing to 100 lbs . The forces that these exercises produce on the lumbar spine, directly at the L5/SI disc space, are significant. Injured persons with lumbar spine involvement, in most cases, are unable to start and maintain exercises of this magnitude without exacerbating their symptoms. Mr. Sham complains of only slight increases in pain and symtomogly when performing these activities. These exercises mimic the type of activities, forces and strength consistent with performing his job description as truck driver.

In addition, Mr. Sham consistently and repeatedly participated in activities that produced forces and stress to his body that far exceeded those consistent with his job task. In most cases, it is normal for an injured individual to attempt to continue, activities they enjoyed prior to injury. In this case, thoe activities are skydiving and sky surfing. Once the activities are attempted and the symptoms increase, the injured person stops the activity, as it is too painful and debilitating. What is important to realize is that Mr. Sham was able to perform these activities repeatedly without aggravating his symptoms or injury. For example, the video clearly shows Mr. Sham landing after a jump involving sky surfing. He is clearly visible descending and, at the last moment, pushes off the board with his foot and then impacting the ground.15, 16. Mr. Sham then gathers up his chute, along with the board weighing 10 lbs. Carrying these items, he then walks over to the investigators filming his activities. The investigators engage him in a conversation about his activities. This tape depicts several biomechanical attributes. Mr. Sham is able to walk, bend, stoop, and carry items without difficulty or antalgic (pain) posture.
He is able to stand erect holding these items and speak without inflection or obvious pain. This is all done after impacting the ground, 15, 16 with a visibly hard landing at an estimated speed of 15-20 mph. This leads to the following conclusions:

1. Mr. Sham’s body mechanics are not consistent with his reported degree of disability.
2. Mr. Sham’s movement patterns are not consistent with his reported degree of disability.
3. Mr. Sham’s diagnosistic-based limitations are not consistent.

The forces from his voluntary hobby and the construction work would not only have exacerbated his injuries, but most likely would have resulted in a more severe injury and disability, if Mr. Sham was physically impaired or the injury was “active”. As stated, the forces enacted on his body during these activities are so excessive that they would exacerbate and flare-up an active injury, especially the lumbar spine, if the individual was impaired.

For example, astronauts Neil Armstrong (commander) and David Scott (pilot), of the Gemini VIII, received similar forces that Mr. Sham experienced. The Gemini VIII astronauts experienced Gz force of 0.89 G-units from the waist up, Gz of 0.05 from the waist down, and were momentarily incapacitated.11 This was so disturbing to NASA that they redesigned the space capsule for re-entry to prevent this from recurring. Mr. Sham sustains and repeats forces in excess of 1-2 Gz and tolerates these activities consistent with a professional skydiver, again without hesitation or injuring his low back. Long-term stress and force causes significant long-term injury and changes to the human body, i.e., spinal stenois,12 disc disease and repeated micro tearing of the intervertebal discs, etc. These changes are represented in Mr. Sham’s medical data, indicative of long-term, continuous trauma due, in part, to his skydiving activities.

Mr. Sham also made statements that he was training for the ESPN Extreme Games in Sky Surfing.3, 13, 14 The requirements to enter this sport are physically demanding. They require multiple jumps exceeding speeds of 200 mph and Gz forces well exceeding 1.00. In addition, the competition requires the surfer/diver to twist, turn, rotate, and spin while traveling at speeds in excess of 150-200 mph. This, again, causes tremendous stress on the body that would have resulted in injury and incapacitation to an individual with an injury.11, 12 Mr. Sham practiced and performed for this competition multiple times, indicating his ability to return to work full time, unrestricted. Billy Carnes made the statement that skydiving is “not as strenuous as pushing twenty or thirty thousand pounds of freight around, it’s not quite the same thing.”2 He is, in essence, correct; it is not the same thing, it is worse. By definition, Very Heavy Lifting17 constitutes lifting greater than 100 lbs on an occasional basis, 50 lbs on a frequent basis, and 20 lbs on a constant basis. In his employment as a truck driver, Mr. Sham is able to utilize his own strength and body mechanics in performing lifting tasks. He is able to control the speed, force, direction, and all aspects of the job task. His own pain, fatigue, impairments, restrictions, and intelligence, along with the human guarding mechanism, limit him from injuring himself unless, of course, unforeseen circumstances occur.
In the case of skydiving, he knows the risks and is unable to affect and control the forces acted upon him. The diver cannot prepare for the forces that come from skydiving, as they come from variety of different directions at once and at different loads, causing extreme tearing, shearing, and loading on all parts of the body. An injured body cannot take this abuse and stress without breaking down, or the symptoms and impairments flaring-up. The fact that Mr. Sham was able to repeat this activity supports the conclusion that he could have returned to work full time unrestricted when he resumed or continued skydiving. Mr. Sham continued to perform these activities, resulting in stresses and forces more severe than he could possibly have caused himself performing the duties consistent with a truck driver during a typical day at work.

The August 8, 1998 Physical Capacity Evaluation determined, objectively, Mr. Sham’s Physical Demand Level (PDL) to be Very Heavy Lifting17 consistent with and exceeding the New Penn Motor Express Inc. job description of Truck Driver. According to the records, Mr. Sham did not exhibit the following. His strength presentation was not consistent with his diagnosis. One would expect a significant increase in pain and restriction from someone with the type of injury and restriction reported by Mr. Sham. As stated above, this testing is rigorous and physically demanding. This testing is designed to aggravate an injury to determine a subject’s ability to do work. Mr. Sham was able to tolerate and excel in the testing process to levels far exceeding the average proportion of the population. This testing indicated that Mr. Sham was able to return to work as a truck driver full time and unrestricted.

The position and specific job functions as described by New Penn Motor Express, Inc.5 are safe for Mr. Sham to perform. Mr. Sham exhibited, in multiple ways, independent of one another, the ability and strength consistent with and exceeding the ability to perform very heavy work consistent with his job tasks at New Penn Motor Express, Inc. We did not find any physical reason why Mr. Sham could not return to his job duties5 as a truck driver as of March 30, 1998. This is the date Mr. Sham completed his rehabilitation routines consistent with his job description. It is also concluded that Mr. Sham could have returned to his job task full time, unrestricted, upon his first repeated freestyle skydiving activity, or whichever date came first. It is our opinion, based on the available subjective data provided, Mr. Sham could have been working in some capacity with modified duty from the date of injury. We cannot give an exact work level, as we do not have objective medical records or tests to determine the level of work for which he could have returned. However, the rehabilitation records of March 30, 1998 indicate that he was lifting weights in positions that mimicked his work activities as a truck driver, and could have returned to work full time unrestricted on that date.

In addition, Mr. Sham’s subjective complaints of pain, spasm, and restrictions do not correlate with his activities. They are inconsistent with the findings of the physical capacity evaluation, along with the physical requirements of sky surfing, skydiving, and/or construction work. In addition, Mr. Sham stated that his goal was “to return to work.” Specifically, he did not return to work but continued to misrepresent the facts regarding with his outside activities, severity of his injuries, and ability to return to work, to all medical personnel encountered.
All decisions made by the medical personnel were based on misleading statements and inaccurate subjective data provided by Mr. Sham. The medical personnel were unable to accurately determine the legitimacy of the claim and make recommendations as to the severity of injury, treatment, and return to work recommendations.

All available data supports the conclusions reached in this report. Thank you very much for considering this organization for your referral. If there are any questions concerning this matter, please feel free to contact me.

Sincerely,

Allen S. Miller, D.C., DACBSP
COO, Kinematic Solutions, LLC
Enclosures

Footnotes
Transcript Court Proceedings, Commonwealth of Massachusetts, Lowell District Court. Commonwealth of Massachusetts vs. Timothy Sham. April 11, 2001.
3 Transcript from Tape Recording: Case #:01-0533. Southern New England Joint Area Committee. May 24, 2001.
4 Diagnostic Imaging Department, Exeter Hospital, Inc. 12/30/1997.
5 Exercise: Worksheet, Exeter AthletiCare. 3/26/98-4/3/98
6 Exercise: Worksheet, Exeter AthletiCare. 6/12/98-6/26/98.
7 Job Description, 1-City Driver/Road Driver.
8 rec.skydiving FAQ Sheet. http://www.afn.org/skydive/faq/faq.html#physical ., Archive-name: sports/skydiving/faq. Last-modified: 8/13/97
9 Fong KL, Fan SW., An overview of the physiological effects of sustained high +Gz forces on human being. Ann Acad Med Singapore 1997 Jan;26(1):94-103.
10 Physical Capacity Evaluation, Debra McAuley, OTR/L 8/13/98
11 Mohler SR, Nicogossian AE, McCormack PD, Mohler SR Jr., Tumbling and space flight: the Gemini VIII experience. Aviat Space Environ Med 1990 Jan;61(1):62-6.
12 Hamalainen O, Toivakka-Hamalainen SK, Kuronen P. +Gz associated stenosis of the cervical spinal canal in fighter pilots. Aviat Space Environ Med 1999 Apr;70(4):330-4
13 BAP Qualifications. HTTP://www-user.york.ac.uk/~socs213/info/category.html .
14 Addendum-Sky surfing Compulsory Sequences 2001 Performance Requirements & Judgment Criteria. HTTP://members.aol.com/skysurfnj/page4.html.
15 VHS Videotape. Labeled MASS AG. Depicting Mr. Sham Sky surfing, landing and interviewed by investigators.
16 VHS Videotape. Labeled TV-25 Sham. Depicting Fox 25 new at Ten. Fox undercover exclusive of Timothy Sham sky surfing.
17 Dictionary of Occupational Titles, U.S. Department of Labor Employment and Training Administration 1991. Volume II Fourth Edition, Revised 1991